Delhi District Court
Sanjay Garga vs Mukesh Garga Ors on 12 March, 2026
IN THE COURT OF MS. RICHA GUSAIN SOLANKI,
DISTRICT JUDGE - 02, SOUTH WEST DISTRICT, DWARKA
COURTS, DELHI
CS DJ ADJ No. 516947/2016
CNR No. DLSW010007642013
IN THE MATTER OF:
SANJAY GARGA
S/O Late Sh. O.P. Garga
R/O E-90, Gali No.11, Rajapuri,
Uttam Nagar, New Delhi-59. ... Plaintiff
versus
1. MUKESH GARGA
2. TRILOK GARGA
Both S/O Late Sh. O.P. Garga
R/O E-90, Gali No.11, Rajapuri,
Uttam Nagar, New Delhi-59.
3. RAJEEV GARGA (since deceased)
Through LR/his mother, Smt Chandrawati
4. CHANDRAWATI
W/O Late Sh. O.P. Garga
R/O E-90, Gali No.11, Rajapuri,
Uttam Nagar, New Delhi-59.
5. MANOJ GARGA
S/O Late Sh. O.P. Garga
R/O Flat No. 162, Sector-14, Pocket-B,
Phase-II, Dwarka, New Delhi-75.
6. PRABHA RANI
W/O Sh. Vishnu Aggarwal
D/O Late Sh. O.P. Garga
R/O 3794/5, Kanhiya Nagar,
Tri Nagar, Delhi. ... Defendants
Date of institution of petition 06.09.2013
Date of order reserved: 12.02.2026
CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 1/23
Date of pronouncement: 12.03.2026
JUDGMENT
This is a suit for partition, possession and injunction. Brief facts of the case are as follows:
PLAINT 1 The plaintiff, defendant nos. 1 to 3, and defendant nos. 5 and 6 are the children of Late Sh. O.P. Garga, whereas defendant no. 4 is the widow of Late Sh. O.P. Garga. Late Sh. O.P. Garga passed away on 06.08.2009.
2 It is averred in the plaint that Late Sh. O.P. Garga was the owner of the following properties:
a) Plot bearing no. J-121, New Palam Vihar, Gurgaon, Haryana;
b) Built-up property admeasuring 200 sq. yards bearing no.
E-90, out of Khasra No. 109/3/1 and 2, Village Palam, consisting of four rooms and two shops on the ground floor and one room on the first floor; and
c) Flat no. 162, LIG Flat, Sector-14, Pocket-B, Phase-II, Dwarka, New Delhi.
(hereinafter collectively referred to as the "suit properties".) 3 It is further averred that upon the demise of Sh. O.P. Garga, all the parties to the present suit became entitled to an equal 1/7th share in the suit properties. It is stated that the suit properties are in the joint possession of the parties. 4 It is further averred that the plaintiff repeatedly requested the defendants to effect partition of the suit properties; however, defendant no. 1 categorically refused to accede to the said request.
5 In view of the aforesaid circumstances, the present suit has CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 2/23 been instituted seeking a decree of partition of the suit properties by metes and bounds and a decree of permanent injunction. WRITTEN STATEMENTS 6 Defendant no. 1 has filed a written statement contending that property bearing no. J-121 had been sold by Late Sh. O.P. Garga in the year 1996 to one Sheela John. It is further stated that Late Sh. O.P. Garga had bequeathed property bearing no. E-90 to defendant no. 1 by way of a registered Will dated 03.05.2005. It is also stated that the plaintiff is residing in one room of property bearing no. E-90 merely as a licensee of defendant no. 1.
It is further contended that the plaintiff has not properly valued the suit for the purposes of jurisdiction, as the collective value of the suit properties is stated to be more than ₹4.80 crores.
According to defendant no. 1, Late Sh. O.P. Garga had, during his lifetime, settled all his sons and had also made provision for his wife. It is stated that Janta Flat No. 1, Sector-16B, and Flat No. 148, Pocket-B, Sector-14 were purchased by him in the name of the plaintiff; property bearing no. E-90 was given to defendant no. 1; defendant no. 3 was given cash; Flat No. 265, Pocket-B, Sector-14 was purchased in the name of defendant no. 4; Flat Nos. 162 and 218, Pocket-B, Sector-14 were purchased in the name of defendant no. 5; whereas defendant no. 2 had severed relations with the family and was not given any property.
It is further stated that there was no occasion for the plaintiff to approach the defendants for partition, as all the properties had already been settled by Late Sh. O.P. Garga. 7 Defendant no. 2 did not file any written statement and was accordingly proceeded ex parte.
8 Defendant nos. 3 to 5 have supported the case of the CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 3/23 plaintiff but have stated that Plot bearing no. J-41, New Palam Vihar, Gurgaon, Haryana belongs to defendant no. 4. (It is noted that the plaintiff had initially sought partition of property bearing no. J-41; however, the plaint was subsequently amended to correct the description of one of the suit properties to Plot bearing no. J-121. These defendants did not file any written statement to the amended plaint.) 9 Defendant no. 6 has stated that she is not aware of the properties left behind by Late Sh. O.P. Garga but has no objection to the partition of the same.
REPLICATION 10 The plaintiff has filed a replication to the written statement of defendant no. 1, wherein the averments made in the written statement have been denied and the contents of the plaint have been reiterated. It is stated that the Will propounded by defendant no. 1 is not genuine, as Late Sh. O.P. Garga was incapable of executing such a Will at the relevant time. It is averred that the suit properties had been purchased by Late Sh. O.P. Garga in his capacity as the Karta of the joint family from the joint funds/income of the family. It is further stated that Late Sh. O.P. Garga was not in a position to look after property bearing no. E-90, whereas defendant no. 1 was unemployed at the relevant time; therefore, the Will and General Power of Attorney were executed only for the limited purpose of enabling defendant no. 1 to look after the said property. The plaintiff further states that he became aware of the alleged GPA and Will only upon receipt of the written statement filed by defendant no. 1. ADMISSION-DENIAL OF DOCUMENTS 11 Defendant no.1 admitted the following documents of the plaintiff:
CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 4/23
i) Copy of gas connection in the name of the plaintiff as Ex.P1;
ii) Copy of Election ID Card of the plaintiff as Ex.P2;
iii) Copy of ration card of Sh. O.P. Garga as Ex.P3;
iv) Copy of death certificate of Sh. O.P. Garga as Ex.P4; and
v) Copy of sale deed of Plot No.J-121 as Ex.P5.
12 The plaintiff admitted the driving license of defendant no.1 as Ex.D1.
ISSUES 13 On the basis of the pleadings of the parties, the following issues were framed on 09.11.2016:
"(i) Whether the plaintiff is entitled to 1/7 th share in the suit properties - (i) admeasuring 100 sq. yds.
No.J121, New Palam Vihar, Gurgaon, Haryana, (ii) built up property admeasuring 200 sq. yds. consisting of four rooms and two shops on ground floor, out of Khasra No.109/3/1 & 2 situated in the revenue estate of Village Palam, Delhi, and (iii) property bearing No.162, LIG Flat, Sector14, Pocket B, PhaseII, Dwarka, New Delhi? ...OPP.
(ii) Whether the suit property admeasuring 200 sq. yds., consisting of 4 rooms and two shops at the ground floor and one room on the first floor, out of khasra No.109/50/1 and 2 situated in Village Palam, Delhi has devolved upon Mukesh Garga - by way of a registered will dated 02.05.2005 bearing Regn. No.15125 Addl. Book No.3, Vol. No.7384 on page 92 dated 03.05.2005? ...OPD1.
(iii) Whether the plaintiff is entitled for preliminary decree of partition against the defendants with regard to the suit properties? ...OPP.
(iv)Whether the plaintiff is entitled for final decree of partition against the defendants with regard to the suit properties ? ...OPP.
(v) Whether the plaintiff is entitled for decree of permanent injunction against the defendants with regard to the suit properties? ...OPP.
(vi) Whether the suit is liable to be dismissed as the CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 5/23 same has been undervalued and requisite court fees has not been affixed on the plaint by the plaintiff? ...OPD1.
(vii) Whether the plaintiff has suppressed material facts and documents from this Court? ...OPD1.
(viii) Relief, if any."
EVIDENCE 14 The plaintiff examined four witnesses in his support:
14.1 PW1/the plaintiff tendered his evidence by way of affidavit Ex.PW1/A which is on the lines of the plaint. He relied on the following documents:
S.No. Document Endorsed as
1. Copy of death certificate and Ex PW1/1 (also Ex P4) and Ex ration card of Sh OP Garga PW1/2 (also Ex P3)
2. Copy of his Election ID Card Ex PW1/3 (also Ex P2)
3. Copy of sale deed of property Mark PW1/4 (also Ex P5) no. J-121 (The tendering of this document was objected to by Ld Counsel for defendant no.1, however, this document had already been admitted as Ex P5 during the admission-denial of documents.
The objection is thus, overruled) 14.2 PW2/Defendant no.5 testified on the lines of the plaint through his affidavit Ex PW2/A. He relied on documents already exhibited by PW1.
14.3 PW3/Witness from the DDA proved the allotment of Flat no. 162 in favour of Sh O.P. Garga and placed copies of the relevant documents as Ex PW3/A. 14.4 PW4/Witness from office of Sub-Registrar, Gurugram proved the registration of the sale deed of property no. J-121 in favour of Sh. O.P. Garga, a copy of which is Ex PW4/A. 15 The defendants examined two witnesses in all:
15.1 DW1/Jag Ram Badhana tendered his evidence by way of CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 6/23 affidavit Ex.DW1/A which states that he was known to Sh OP Garga being the Pradhan of Rajapuri. He identified his signatures on the Will Ex DW1/1 and GPA Ex DW1/2 at point 'B', the signatures of Sh. O.P. Garga at point 'A' and those of the other attesting witness at point 'C'. He stated that Sh. O.P. Garga was in a fit state of mind and health at that time.
15.2 DW-2/Defendant no.1 tendered his affidavit in evidence as Ex. DW2/A, is on the lines of the written statement. He relied on the Will Ex DW1/1.
FINDINGS 16 I have heard Sh. S.S. Yadav, Ld Counsel for the plaintiff, and Sh. Daman Yadav, Ld Counsel for the defendant no.1. 17 The issue-wise findings are as under:
18 "(vi) Whether the suit is liable to be dismissed as the same has been undervalued and requisite court fees has not been affixed on the plaint by the plaintiff? ...OPD1." 18.1 Defendant no. 1 has not led any evidence to demonstrate that the valuation of the suit properties, as stated in the plaint at ₹18,00,000/-, is incorrect. In the affidavit of DW-2/defendant no.
1, it has merely been stated that the cumulative value of the suit properties is more than ₹2 crores; however, no basis for such an assertion has been disclosed.
18.2 During his cross-examination, the plaintiff stated that the cumulative worth of the suit properties was ₹1.80 crores as on the date of his deposition (25.07.2022). However, the relevant date for determining the valuation of the suit is the date of its institution, which is nearly nine years prior to the said statement. 18.3 There is nothing on record to indicate that the cumulative value of the suit properties was not ₹18 lakhs, or that it exceeded ₹2 crores, as on the date of institution of the present suit.
CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 7/23 18.4 It is not the case of defendant no. 1 that the plaintiff has been ousted from the suit properties. The plaintiff has paid court fees of ₹7,800/- towards the relief of partition and ₹250/- towards the relief of injunction. Thus, no deficiency in the valuation of the suit or payment of court fees is made out. Accordingly, this issue is decided in favour of the plaintiff.
19 "(vii) Whether the plaintiff has suppressed material facts and documents from this Court? ...OPD1."
19.1 Defendant no. 1 has contended that the plaintiff has concealed the fact that Late Sh. O.P. Garga had made provisions for his wife and all his sons, except defendant no. 2, during his lifetime, and that the plaintiff has failed to disclose such arrangements before the Court. It is further the case of defendant no. 1 that property bearing no. E-90 had been bequeathed to him as part of the said arrangement. However, in my view, this plea alone is insufficient to hold that the plaintiff is guilty of suppressing material facts from the Court.
19.2 It is not the case of defendant no. 1 that Late Sh. O.P. Garga had ever informed the members of his family, including the plaintiff, that he had bequeathed property bearing no. E-90 to defendant no. 1, or that Flat no. 162, Pocket-B, Sector-14 had been given to defendant no. 5. On the contrary, defendant no. 5 has supported the plaintiff's claim seeking partition of Flat no.
162. In these circumstances, there is insufficient material to conclude that the plaintiff had knowledge of such alleged arrangements and deliberately withheld the same from the Court. 19.3 In any event, the present proceedings are in the nature of a partition suit, wherein, in substance, each defendant also assumes the character of a plaintiff and vice versa. Therefore, a suit for partition cannot ordinarily be dismissed on the ground of alleged CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 8/23 concealment of facts by only one of the parties. 19.4 Accordingly, this issue is also decided in favour of the plaintiff.
20 "(ii) Whether the suit property admeasuring 200 sq. yds., consisting of 4 rooms and two shops at the ground floor and one room on the first floor, out of khasra No.109/50/1 and 2 situated in Village Palam, Delhi has devolved upon Mukesh Garga - by way of a registered will dated 02.05.2005 bearing Regn. No.15125 Addl. Book No.3, Vol. No.7384 on page 92 dated 03.05.2005? ...OPD1."
20.1 It is an admitted position between the parties that the suit property bearing no. E-90 was purchased by Late Sh. O.P. Garga. 20.2 In the written statement, it has been pleaded that Late Sh. O.P. Garga executed a registered Will dated 03.05.2005, whereby the said property was bequeathed exclusively in favour of defendant no. 1. In order to prove the said Will, defendant no. 1 examined one of the attesting witnesses as DW-1. The said witness identified the signatures of Late Sh. O.P. Garga as well as those of the two attesting witnesses on the Will and deposed that Late Sh. O.P. Garga was in a sound and fit state of mind at the time of its execution.
20.3 Learned counsel for the plaintiff has submitted that the execution of the Will, in itself, is not the dispute. The plaintiff has challenged the Will on two principal grounds. Firstly, it is contended that the suit properties, including property bearing no. E-90, had been purchased by Late Sh. O.P. Garga in his capacity as the Karta of the joint family from the joint funds/income of the family, and therefore he was not competent to bequeath the same by way of a Will. Secondly, it is contended that the Will was executed along with a General Power of Attorney merely to enable defendant no. 1 to manage the said property, and that there CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 9/23 was never any intention on the part of Late Sh. O.P. Garga to actually bequeath the property in favour of defendant no. 1. 20.4 On the other hand, learned counsel for defendant no. 1 has argued that the plaintiff failed to seek a declaration with respect to the registered Will after the same was propounded in the written statement, and is therefore precluded from challenging its validity. In support of this contention, reliance has been placed on the judgment in Smt. Sarita Dua vs. Dr. Gautam Dev Sood & Ors., 2023 DHC 4425-DB.
20.5 The contention that the plaintiff was required to seek a declaration with respect to the Will is devoid of merit. The plaintiff has categorically denied the execution and validity of the Will in his replication and has asserted his entitlement to partition of the suit properties. The Will having been set up by defendant no. 1 for the first time in the written statement, the burden of proving its due execution, the testamentary capacity of the testator, and the absence of suspicious circumstances squarely lay upon him. There was no legal obligation upon the plaintiff to seek a declaration that the Will was non est. Reliance in this regard may be placed upon the judgment of the Hon'ble Supreme Court in Venigalla Koteswaramma vs. Malempati Suryamba & Ors., (2021) 4 SCC 246, wherein a similar issue was considered. Rejecting the contention that a plaintiff seeking partition must mandatorily seek cancellation of a Will relied upon by the defendant, the Hon'ble Supreme Court held as under:
"38. A reference to the relevant background makes it clear that in this suit for partition, separate possession and recovery of mesne profits, the plaintiff-appellant asserted that defendants 1 to 3 were the co-sharers and alleged that defendant 4 and other impleaded defendants were creating hinderance/obstructions in division of properties of Annapurnamma among the siblings. The principal allegations in the plaint were directed against defendant 4 with reference to his dealings with the properties of Annapurnamma; CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 10/23 and his intermeddling with the affairs of plaintiff and her siblings by obtaining an agreement for mediation in favour of his own persons. In that sequence, it was also alleged that defendant 4 and his family persons obtained thumb impressions of Annapurnamma on papers, after her death. However, there had not been any reference to any agreement for sale nor there was any allegation of fabrication of any particular document. The plaintiff had not shown awareness about any agreement for sale executed by Annapurnamma or obtained from her by any person; and there was no reference to any agreement like Ex. B-10. As noticed, the plea regarding execution of the agreement for sale by Annapurnamma on 05.11.1976 and Will on 15.06.1978 came up only in the written statement filed by defendant 4. Examination of the record makes it clear that only after taking of such pleas by defendant 4 in his written statement that the legatee under the Will (Ex. B-9) and the vendee in the agreement (Ex. B-10) were added as defendants 14 and 15 respectively. Such pleas were refuted by the plaintiff by amendment of the plaint as also by way of further pleadings in rejoinder. The plaintiff denied the execution of Will and agreement by Annapurnamma and submitted that defendants 14 and 15 were having no right in the property and their claims were liable to be ignored. The plaintiff did not seek any relief of declaration, whether against the Will or against the agreement; and in our view, she was not required to seek any such declaration. 38.1. As noticed, the pleas concerning Will and sale agreement were taken only by the defendant 4 in his written statement (and by such other defendants who adopted his written statement). Obviously, the onus of establishing such pleas was on the contesting defendants. If such pleas, or any of them, stood established, the necessary consequences would have followed and in other event, the plaintiff was to succeed. In any event, the documents of Will and sale agreement, as set up by the contesting defendants, were subject to proof by the persons setting them up. On her part and for the purpose of maintaining the suit for partition and other related reliefs, the plaintiff was entitled to ignore them and there as no necessity for the plaintiff to seek the relief of declaration against the agreement set up by the defendants."
(emphasis supplied) 20.6 In Smt. Sarita Dua (supra), relied upon by the learned counsel for defendant no. 1, the plaintiffs had instituted a suit in the year 2020 seeking partition and rendition of accounts. However, the plaintiffs had earlier filed a similar suit in the year 2009, during the course of which they had been informed about two registered gift deeds executed by their mother in favour of the defendants in respect of the suit property. It was in these CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 11/23 circumstances that it was held that, since the plaintiffs had failed to challenge the said registered gift deeds within a period of three years from the date of acquiring knowledge thereof, they were not entitled to seek partition of the suit property. The said judgment is therefore clearly distinguishable on facts. 20.7 Similarly, in Ramti Devi vs. Union of India, (1995) 1 SCC 198, which was relied upon in Smt. Sarita Dua (supra) and specifically referred to by the learned counsel for defendant no. 1, the plaintiff had instituted a suit in the year 1966 seeking a declaration that she was the owner of the suit property, despite being aware of the execution of a registered sale deed in respect of the said property since the year 1947. In those circumstances, it was held that without seeking a declaration regarding the said registered sale deed, the plaintiff could not claim a declaration of ownership. The said decision is also inapplicable to the facts of the present case.
20.8 Reverting to the objections raised by the plaintiff, I find the same to be untenable. The plaintiff has led no evidence whatsoever to establish that the suit properties constituted joint family properties. There is nothing on record to indicate that the suit properties were purchased out of the joint earnings of the family, who contributed towards the purchase of each property and to what extent, and most importantly, even if any such contribution had been made by family members, whether there was any intention to treat the properties as forming part of the common hotchpotch of a Hindu Undivided Family. 20.9 After the enactment of the Hindu Succession Act, 1956, the concept of Hindu Undivided Family property underwent considerable dilution. Consequently, it was incumbent upon the plaintiff to establish either that the suit properties existed prior to CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 12/23 the coming into force of the Hindu Succession Act, 1956 and continued as properties of a Hindu Undivided Family thereafter, or that the properties were subsequently thrown into the common hotchpotch so as to acquire the character of Joint Hindu Family/HUF properties.
20.10 It is not the case of any party that the suit properties were acquired prior to the enactment of the Hindu Succession Act, 1956. Likewise, the plaintiff has failed to establish when any particular property or properties were allegedly thrown into the common hotchpotch so as to create a Joint Hindu Family or HUF property.
20.11 In view of the foregoing discussion, there is no merit in the contention that Late Sh. O.P. Garga lacked the competence to bequeath property bearing no. E-90 through a Will. 20.12 The next contention raised on behalf of the plaintiff is that Late Sh. O.P. Garga never intended to bequeath property bearing no. E-90 to defendant no. 1, and that the Will and the General Power of Attorney were executed only to enable defendant no. 1 to manage the said property.
20.13 Learned counsel for the plaintiff has argued that it is an admitted position that there was no electricity connection in the suit property until the execution of the GPA and the Will. It is submitted that subsequent to the execution of these documents, defendant no. 1 obtained an electricity connection in his own name. According to the plaintiff, the sole intention behind the execution of these documents was to facilitate the procurement of an electricity connection for the property.
20.14 Learned counsel for the plaintiff has further argued that the Will is surrounded by suspicious circumstances, inasmuch as defendant no. 1 allegedly played an active role in its CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 13/23 preparation. It is contended that both the Will and the GPA were executed on the same day, which, according to the plaintiff, indicates the presence of defendant no. 1 at the office of the Sub- Registrar at the relevant time. It is further submitted that if property bearing no. E-90 had already been bequeathed by way of a Will, there was no necessity for Late Sh. O.P. Garga to execute a GPA as well. It is also argued that the family members, except defendant no. 2, shared cordial relations, and yet the Will is completely silent regarding the wife and other children of Late Sh. O.P. Garga, apart from the beneficiary, i.e., defendant no. 1, and does not disclose any reason for excluding them from property bearing no. E-90.
20.15 In response, learned counsel for defendant no. 1 has contended that Late Sh. O.P. Garga had made provisions for each of his sons and for his wife during his lifetime. According to defendant no. 1, as part of this arrangement, Janta Flat No. 1, Sector-16B, and Flat No. 148, Pocket-B, Sector-14 were purchased by Late Sh. O.P. Garga in the name of the plaintiff; defendant no. 3 was given cash; Flat No. 265, Pocket-B, Sector-14 was purchased in the name of defendant no. 4; and Flat Nos. 162 and 218, Pocket-B, Sector-14 were purchased in the name of defendant no. 5. It is further stated that defendant no. 2 had severed relations with the family long ago and was therefore not given any property. It is thus submitted that the other family members had already received their respective shares, and property bearing no. E-90 was intended to devolve upon defendant no. 1 alone. It is also pointed out that the attesting witness, DW-1, deposed that Late Sh. O.P. Garga had indicated to him that he had already made arrangements for his other family members; beyond this, the attesting witness could not reasonably CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 14/23 be expected to speak about the internal intentions of the testator. 20.16 I have considered the rival submissions. At the outset, it is pertinent to note that there is no dispute that the Will was duly executed by Late Sh. O.P. Garga or that he was in a sound state of mind at the time of making the testamentary disposition. It is also not alleged that the Will was executed under circumstances of fraud, misrepresentation, or undue influence. The objection raised by the plaintiff essentially concerns the intention behind the execution of the Will.
20.17 Late Sh. O.P. Garga had retired from the Air Force as a UDC and thereafter worked as a Security Manager with a private agency. During his lifetime he acquired several properties. There is therefore no reason to doubt that he understood the nature and consequences of executing a document, particularly a registered document relating to immovable property.
20.18 It has indeed emerged from the record that an electricity connection was obtained in the name of defendant no. 1 after the execution of the GPA and the Will. The plaintiff has asserted that Late Sh. O.P. Garga was incapable of looking after the said property; however, no explanation has been furnished as to what prevented him from managing the property himself or from obtaining an electricity connection in his own name. At the time of execution of the GPA and the Will, Late Sh. O.P. Garga was about 67 years of age and he passed away approximately four years thereafter. If he was indeed incapable of managing the affairs of property bearing no. E-90, the plaintiff ought to have explained the circumstances giving rise to such incapacity. 20.19 It also defies logic that Late Sh. O.P. Garga would appoint an attorney solely for the purpose of managing one CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 15/23 property, in which he was admittedly residing, while refraining from doing so in respect of other properties which would arguably have been more difficult to manage since he was not residing there.
20.20 Furthermore, if the GPA and the Will had indeed been executed merely for the purpose of obtaining an electricity connection, there is no explanation as to why Late Sh. O.P. Garga did not revoke or cancel these documents once the electricity connection had been obtained. It is not the case of any party that Late Sh. O.P. Garga ever expressed that the documents were executed solely for that limited purpose or that he intended to cancel them thereafter.
20.21 On the contrary, the fact that the electricity connection was obtained in the name of defendant no. 1 appears to explain the execution of the GPA in addition to the Will. A Will operates only upon the death of the testator. It appears that Late Sh. O.P. Garga intended that the electricity connection in respect of property bearing no. E-90 should stand in the name of defendant no. 1 during his lifetime, which explains the execution of the GPA alongside the Will. It is also noteworthy that all parties are admittedly in joint possession of property bearing no. E-90, yet none of them raised any objection, either during the lifetime of Late Sh. O.P. Garga or thereafter, as to why the electricity connection had been obtained in the name of defendant no. 1. This conduct lends support to the inference that it was understood within the family that property bearing no. E-90 was intended to devolve upon defendant no. 1. 20.22 The contention that defendant no. 1 had played an active role in the preparation of the Will on account of his alleged presence at the office of the Sub-Registrar on the relevant day CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 16/23 also remains unsubstantiated. The attesting witness of both documents, DW-1, specifically denied that defendant no. 1 was present at the time of execution or registration of the Will and GPA. Defendant no. 1 himself denied being present with his father when the documents were executed. Neither the Will nor the GPA bears the signature of defendant no. 1. There is thus no material on record to conclude that defendant no. 1 was present when the Will was executed.
20.23 Learned counsel for the plaintiff has further argued that the exclusion of Class-I heirs, with whom the testator admittedly shared cordial relations, without recording any reasons in the Will, constitutes a suspicious circumstance. In support of this contention, reliance has been placed upon Ramesh Chand (D) Thr. LRs vs. Suresh Chand and Anr., 2025 INSC 1059, and Gurdial Singh (Dead) through LRs vs. Jagbir Kaur (Dead) & Anr., 2025 INSC 866.
20.24 At first blush, the said argument appears to carry some weight, particularly because the existence of cordial relations between the family members is not in dispute and the Will is indeed silent regarding the other immediate family members. However, upon considering the totality of the circumstances, I am of the view that this factor alone is insufficient to disbelieve the Will.
20.25 Defendant no. 1 has offered an explanation for the exclusion of the other family members from property bearing no. E-90, notwithstanding cordial relations, namely that Late Sh. O.P. Garga had already made arrangements for them by providing other properties or benefits. According to defendant no. 1, defendant no. 2 had not been given any property as he had severed relations with the family long ago. This fact has been CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 17/23 admitted by both the plaintiff and PW-2/defendant no. 5. 20.26 Defendant no. 1 has further contended that Janta Flat No. 1, Sector-16B, and Flat No. 148, Pocket-B, Sector-14 were purchased by Late Sh. O.P. Garga in the name of the plaintiff. The plaintiff admitted that both these flats stand in his name but denied the suggestion that they had been purchased by his father. However, when questioned, he was unable to recall the dates of purchase of these properties and admitted that he was unable to produce any document relating to the purchase of Flat No. 148.
20.27 Defendant no. 1 has also claimed that Flat Nos. 162 and 218, Pocket-B, Sector-14 were purchased by Late Sh. O.P. Garga in the name of defendant no. 5. Defendant no. 5/PW-2 admitted that Flat No. 218 had indeed been purchased by Late Sh. O.P. Garga in his name. With regard to Flat No. 162 (which forms one of the suit properties), both PW-1 and PW-2 admitted that PW-2/defendant no. 5 has been in possession of the same since its inception.
20.28 Defendant no. 1 further deposed that Flat No. 265, Pocket-B, Sector-14 had been purchased by Late Sh. O.P. Garga in the name of defendant no. 4 (his wife). While the plaintiff denied having knowledge of this flat, PW-2 admitted that the said flat had been purchased by Late Sh. O.P. Garga in the name of defendant no. 4.
20.29 Defendant no. 1 also deposed that defendant no. 3 had been given cash; however, no concrete material has been placed on record in this regard.
20.30 Nevertheless, the present case does not appear to be one where the entire estate has been conferred as a windfall upon a single heir, as was the situation in the cases of Gurdial Singh CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 18/23 (supra) and Ramesh Chand (supra) relied upon by the learned counsel for the plaintiff.
20.31 In the celebrated decision in Boyes vs. Cook, (1880) 14 Ch D 53, the "armchair rule" for the interpretation of a Will was enunciated, which is akin to the principle embodied in Section 75 of the Indian Succession Act:
"You may place yourself so to speak, in [the testator's] armchair and consider the circumstances by which he was surrounded, when he made his will to assist you in arriving at his intention"
20.32 From the material available on record, it appears highly probable that Late Sh. O.P. Garga had made provisions for his family members, or at least for most of his Class-I heirs, in one form or another in a manner which he considered appropriate.
20.33 It is well settled that a court dealing with the validity of a Will cannot dictate the manner in which a testator ought to have disposed of his property, nor can it import its own notions of fairness or ethics into the testamentary disposition. Once the Will is found to be genuine, it must be given effect to even if the testator chooses to bequeath property to a stranger while excluding close relatives. In this regard, reliance may be placed upon Ramabai Padmakar Patil vs. Rukminibai Vishnu, (2003) 8 SCC 537 and Ved Mitra Verma v. Dharam Deo Verma, (2014) 15 SCC 578.
20.34 It has also been repeatedly held by the Hon'ble Supreme Court that the very object of making a Will, in many cases, is to alter the normal line of succession, and the mere fact that the normal course of succession stands altered by giving less or nothing to one or more legal heirs cannot, by itself, constitute a suspicious circumstance.
CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 19/23 20.35 Therefore, this Court, being guided by the plain language of the Will Ex. DW-1/1 and the attendant circumstances, does not find that the exclusion of the other heirs from only one property, i.e., property bearing no. E-90, belonging to Late Sh. O.P. Garga, constitutes a suspicious circumstance. 20.36 In view of the foregoing discussion, and since the plaintiff has failed to demonstrate that the Will Ex. DW-1/1 was not intended to operate as a testamentary disposition or that the same cannot be treated as a valid bequest of property bearing no. E-90, out of Khasra No. 109/3/1 and 2, Village Palam, the said contention cannot be accepted.
20.37 Accordingly, this issue is decided against the plaintiff.
21 "(i) Whether the plaintiff is entitled to 1/7th share in the suit properties - (i) admeasuring 100 sq. yds. No.J121, New Palam Vihar, Gurgaon, Haryana, (ii) built up property admeasuring 200 sq. yds. consisting of four rooms and two shops on ground floor, out of Khasra No.109/3/1 & 2 situated in the revenue estate of Village Palam, Delhi, and (iii) property bearing No.162, LIG Flat, Sector14, Pocket B, PhaseII, Dwarka, New Delhi? ...OPP.";
"(iii) Whether the plaintiff is entitled for preliminary decree of partition against the defendants with regard to the suit properties? ...OPP.";
and "(iv)Whether the plaintiff is entitled for final decree of partition against the defendants with regard to the suit properties ? ...OPP."
21.1 In view of the finding that property bearing no. E-90 stands excluded from partition on account of the Will dated 02/03.05.2005, the present suit for partition shall proceed only in respect of property bearing no. J-121 and Flat No. 162. 21.2 It is the admitted case of the parties that property bearing CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 20/23 no. J-121 was purchased by Late Sh. O.P. Garga vide sale deed Ex. PW-4/A. Although defendant no. 1 has claimed that the said property had been sold by Late Sh. O.P. Garga during his lifetime, no documentary evidence of such sale has been placed on record.
21.3 Similarly, it is the admitted case of the parties that Flat No. 162 was allotted to Late Sh. O.P. Garga vide allotment documents Ex. PW-3/A. Defendant no. 1 has contended that Late Sh. O.P. Garga had given the said property to defendant no. 5; however, defendant no. 5 himself, while appearing as PW-2, stated that the said flat had been given to him only for the purpose of running a shop. In other words, he did not claim that the said property had devolved exclusively upon him. Accordingly, this property is also liable to be partitioned. 21.4 It stands proved on record that Late Sh. O.P. Garga passed away on 06.08.2009. Upon his demise, properties bearing no. J-121 and Flat No. 162 devolved upon his Class-I legal heirs in accordance with the applicable law of succession. It is also admitted that the parties to the present suit are the only Class-I heirs of Late Sh. O.P. Garga.
21.5 Consequently, the plaintiff is well within his legal rights to seek partition of the said two properties.
21.6 During the pendency of the present suit, defendant no. 3 expired. He was unmarried and was survived only by his mother, i.e., defendant no. 4.
21.7 Accordingly, the suit properties bearing no. J-121, New Palam Vihar, Gurgaon, Haryana, and Flat No. 162, LIG Flat, Sector-14, Pocket-B, Phase-II, Dwarka, New Delhi are liable to be partitioned, and the respective shares of the parties therein are determined as under:
CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 21/23
a) The plaintiff- entitled to 1/7th share in the said two properties;
b) Defendant nos.1, 2, 5 and 6- each entitled to 1/7th share;
c) Defendant no. 4 - entitled to 2/7th share.
21.8 Accordingly, it is held that each of the above-mentioned parties shall be entitled to possession of his or her respective share in the said two properties, commensurate with the shares determined hereinabove.
21.9 The parties are directed to file their affidavits suggesting the proposed mode of partition so as to enable this Court to proceed with the preparation and passing of the final decree. 21.10 The aforesaid issues are answered in the above terms.
22 "(v) Whether the plaintiff is entitled for decree of permanent injunction against the defendants with regard to the suit properties? ...OPP."
22.1 In view of the fact that all the parties hold undivided interests in the suit properties bearing no. J-121, New Palam Vihar, Gurgaon, Haryana, and Flat No. 162, LIG Flat, Sector-14, Pocket-B, Phase-II, Dwarka, New Delhi, it is directed that none of the parties shall create any third-party interest therein or carry out any alteration or modification to the physical structure of the said properties from the date of this judgment, except with the prior leave of this Court. This issue is answered accordingly.
23 "viii) Relief, if any."
23.1 In view of the findings returned on the aforesaid issues, the suit is partly decreed.
23.2 A preliminary decree sheet be drawn up accordingly.
24 The parties are directed to file their affidavits in terms of paragraph 21.9 of this judgment on 29.04.2026.
CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 22/23 25 The file be placed before the learned Successor Court for further proceedings.
Digitally
signed by
RICHA
RICHA GUSAIN
GUSAIN SOLANKI
SOLANKI Date:
2026.03.12
16:02:32
+0530
Pronounced in the open Court on (Richa Gusain Solanki)
12th March 2026 District Judge-02
South West District
Dwarka Courts Complex, Delhi
*Judgment announced post the transfer of the Presiding Officer in terms of the directions contained in order no. 09/D-3/Gaz1A/DHC/2026 dated 25.02.2026* CS DJ ADJ No. 516947/2016 Sanjay Garga vs Mukesh Garga & Ors page 23/23